A brief thought on unpublished opinions.

I posted a LinkedIn poll yesterday asking about the percentage of published district court cases attorneys cite. I was surprised by the results: 75% of respondents cite published district court cases over 50% of the time. (I was the only respondent who cites published cases around 25% of the time, weirdly.) If I had wagered a guess before the poll, I would have assumed the vast majority of lawyers cite published district court opinions very infrequently.

I asked this question to get at a broader issue I’ve been pondering: why do we have unpublished opinions at all? It may have made sense when the opinions were actually unpublished, but now they’re all available. And maybe it made sense before they could be cited, but now everyone cites unpublished cases, even though they aren’t technically “precedential.”

In the district court context, I truly don't see a need to distinguish between “published” and “unpublished” opinions. District court opinions aren’t precedential, and so the precedential value of a published and unpublished case is identical. Is the point, then, just to signal that one opinion is “better” than another? Shouldn’t all opinions be as well-reasoned as possible?

Even with appellate decisions, if parties still cite unpublished opinions, then they certainly seem like precedent. How often have you seen a district court say “sure, the Ninth Circuit may have held that, but that opinion was unpublished”? Personally, I’ve never seen that. District courts are generally going to follow the court of appeals, whether or not the opinion was published or unpublished.

The main benefit of an unpublished opinion in the appellate context is that future panels are not bound by them. So, if a panel gets things wrong in an unpublished opinion, a future panel can correct things without going en banc. But that’s cold comfort to the party on the losing side of the case that got it wrong. Once again, I would hope all opinions are as well-reasoned as they can be.

So, if it were up to me (it isn’t), I would do away with unpublished opinions. I think they’re a relic of the past and don’t have a place in our current legal system.